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2015 (8) TMI 1270 - ITAT AHMEDABAD

2015 (8) TMI 1270 - ITAT AHMEDABAD - TMI - Unaccounted income addition - CIT(A) deleted the addition - Held that:- CIT(A) has given a finding of fact holding assessee’s unaccounted income to be ₹ 1,43,68,982/- disclosed in its individual capacity to the tune of ₹ 1,04,11,752/- and the balance sum of ₹ 42,15,000/- in the HUF’s hands. The Revenue’s reliance is only upon the assessee’s bald statement. The lower appellate order considers a catena of case law holding therein that su .....

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- SHRI PRAMOD KUMAR ACCOUNTANT MEMBER AND SHRI S.S. GODARA JUDICIAL MEMBER Appellant by : Shri Kamlesh Makwana, Sr.D.R., Respondent by : Smt. Urvashi Sodhan, A.R. ORDER PER S.S. GODARA, JUDICIAL MEMBER This Revenue s appeal for A.Y. 2007-08, arises from order of the CIT(A)-I, Surat, dated 22.12.2008 passed in case no.CAS-I/104/08-09, in proceedings under section 143(3) of the Income Tax Act, in short the Act . 2. The Revenue s sole substantive ground reads as under: 1. On the facts and circumsta .....

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assessee of having undisclosed amount of ₹ 143,68,982/- as credited by the assessee in the P&L a/c as against ₹ 3.12 lacs admitted during the course of search proceedings is factually incorrect. 3. The assessee is assessed as an individual. The department conducted a survey on 2.2.2007 in his group of concerns. It recorded assessee s statement u/s.133A(3)(iii) allegedly admitting total unaccounted income of all group concerns and family members during the relevant financial year .....

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g survey and profits declared with the return hereinabove. The assessee replied that out of the survey disclosure, he admitted a sum of ₹ 1,04,11,752/- which was reduced to ₹ 98,92,240/- after claiming depreciation. He emphasized that there was no business activity carried on in the last three years and the income in question had been disclosed as per the relevant cash book and gross receipts. All this failed to convince the Assessing Officer. He framed a regular assessment on 27.6.2 .....

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der: 2.4.1 I have considered the submission made by the appellant and the observation of the A.O. From the above, it is seen that the A.O. has verified the impounded Annexure BF-1 to BF-10 and has brought no material on record to counter the factual statements made by the assessee that the total receipts as per the impounded annexure BF-1 to BF-10 is only ₹ 1,43,68,982/-. The A.O. has stated that the entire surrendered amount of ₹ 3.12 crores is added only because the assessee has ad .....

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king the above addition the A.O. has placed reliance on the judgment of the Hon'ble Gujarat High Court in the case of Fakir Mohmed Haji Hasan V/s CIT (2001) 247 ITR 290 (Guj). However, on perusal of the above judgment it is clear that the facts of the above case are totally different from the facts of the appellant's case and that the above judgment deals with altogether a different issue than the one under consideration. The decision of the Hon'ble I.T.A.T, Ahmedabad in the case of .....

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of ₹ 42,15,000/- has been shown as income in Vimal Poddar (HUF) and the balance amount of ₹ 1,04,11,752/- has been shown by the appellant in his Return of Income. The appellant has stated that it had disclosed the amount ₹ 3.12 Crore under the impression as during the course of Survey proceedings the officers shown the seized material on which the income disclosed is shown as the transactions are of about 2.85 Crores. Under this impression they insisted to accept the transactio .....

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ak. The appellant has offered for Tax the Total receipt which is the highest among all. The copy of all transaction recorded in the form of ledger were submitted to the A.O. during course of assessment proceeding which covers all the transaction shown in the impounded material BF-1 to BF-10 on which the Disclosure is made. These have been verified by the A.O. and he has brought no material on record to the effect that the impounded material show higher income. 2.4.3 It is clear from the contents .....

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referring to the specific impounded material. As can be seen from the contents of the Assessment Order, the A.O. has not given anv such working neither he has referred to any specific impounded material to contend that the appellant in fact, earned such unaccounted income of ₹ 3,12,00,000/- and not of ₹ 1,43,68,982/- as stated by the appellant. The contents of the Assessment Order thus clearly show that the A.O. has made the impugned huge addition only because the appellant admitted .....

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vey cannot be made as basis of assessment. While taking this view by the Hon'ble ITAT relied on the decision of Allahabad High Court in the case of Abdul Qaum (184- ITR-404). The decision of Ahmedabad ITAT in the case of DCIT, Circle-6, Ahmedbad Vs. Pramukh Builders in ITA No.2170/Ahd/1990 dated 06.07.2007 wherein the Hon'ble ITAT has clearly held that when a statement recorded and declaration is made in the course of search and if that is retracted then when there is no corroborative ev .....

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ee retracted the statement could not make the statement unacceptable. The burden lay on the assessee to establish that the admission made in the statement at the time of survey, was wrong and in facts, there was no additional income. The verdict of the Supreme Court should serve to conclude all arguments regarding the retraction made by the assessee. In the case of the assessee, the burden which the Hon'ble Supreme Court spoke of, had been duly discharged. The appellant stated that the facts .....

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case of Hotel Kiran Vs. ACIT 2002 82 ITT 453. The ITAT held that even though the admission by a person is a good piece of evidence yet it is not conclusive. The assessee can retract from the admission made only under two circumstances. One is when the statement is made involuntarily, i.e. obtained under coercion, threat, duress or undue influence, which is not the case here, no such claim has been made by the assessee. The second situation is where the statement is given under some mistaken beli .....

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